STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
R. Pongiappan, President, Dr. S. Sundaravadivelu, Member and S. Oumasanguery, Member
C. Parthiban and Anr. – Complainants
versus
Dr. Latha Chaturvedula and Anr. – Opp. Parties
Consumer Complaint No.2 of 2017
Decided on 3.5.2023

IMPORTANT POINTS
(1) Consumer - A perusal of the web site of JIPMER shows that while free treatment is given to poor persons, charges are liable to be paid by certain category of persons – On facts, the complainants are consumers under the CP Act and complaint against JIPMER is very well maintainable.
(2) Required skill - The issue to be determined is even if the treating doctor is established to have the required skill and expertise whether the skill was put to practice on the particular occasion.
(3) Timely detection - In the case on hand this timely detection of the caecal injury was not done inspite of the patient being a high risk patient in view of the previous history of appendectomy.
(4) Vicarious liability - In the circumstances if the patient suffers injury due to negligence of the doctors provided by the hospital, the hospital should be equally liable for damages on the principles of vicarious liability or on the principles analogous to vicarious liability.
(5) Mishap - The patient and the complainants cannot be entirely absolved of the charge of contributing for the mishap that has befallen the patient.
(6) Non-Joinder of necessary parties - In so far as the law with regard to the non joinder of necessary party as per Civil Procedure Code Order 1 Rule 9 and Order 1 Rule 10 no suits shall fail because of mis joinder or non joinder of parties. It can proceed against the persons who are parties before the Court.

Headnote:

(A) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Jawaharlal Institute of Post-Graduate Medical Education and Research, Pondicherry Act, 2008 - Services – Medical Negligence – Maintainability of Complaint against statutory body – Medical institution providing free treatment – Whether Consumer law is amendable - Whether the complainants are consumers under the CP Act and whether the complaint is maintainable against JIPMER [“Jawaharlal Institute of Post – Graduate Medical Education and Research, Pondicherry Act, 2008”] as JIPMER is an institution of National Importance established by an Act of Parliament - JIPMER is established by an Act of parliament and is an institution of national importance and has been established with the objective of providing free treatment to the poor patients in the same manner as are being provided by a medical institute of the Central Government - A perusal of the web site of JIPMER shows that while free treatment is given to poor persons, charges are liable to be paid by certain category of persons – On facts, the complainants are consumers under the CP Act and complaint against JIPMER is very well maintainable. [Paras 10 to 33].

(B) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Jawaharlal Institute of Post -Graduate Medical Education and Research, Pondicherry Act, 2008 - Services – Medical Negligence – Medical negligence if can be attributed – when absence of any other plausible explanation - Whether there was any deficiency or negligence in the treatment given - The case at hand may be analysed in the touchstone of reasonable care, knowledge and skill in treatment of patients by the doctors - Thus it is established that caecal injury was found present at the time of second surgery - In the case on hand also, the Opposite parties have not been able to explain the reason for the injury in caecum satisfactorily. Their defence that IBS caused the injury is found incorrect. On the other hand, their defence that laparoscopy could not have caused caecal injury is also incorrect - Therefore commission was compelled to deduce, especially in the absence of any other plausible explanation from the Opposite parties that faulty procedure adopted during the Laparoscopy surgery on the patient on 28.12.2015 has caused perforation of the caecum which led to septicemia and eventually death. The Opposite party 1 has not exhibited the required reasonable skill and care in performing the procedure - No fault is identified in adopting the Laparoscopy cystectomy to remove the ovarian cyst - The complainants also have not raised any complaints against her qualifications. However, the issue to be determined is even if the treating doctor is established to have the required skill and expertise whether the skill was put to practice on the particular occasion – On facts, it is concluded that the Opposite party 1 has not performed the laparoscopic cystectomy with the reasonable competence and due care expected from a reasonable expert in this case and the complainants deserve to be compensated for the negligence. [Paras 34 to 82].

(C) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Jawaharlal Institute of Post -Graduate Medical Education and Research, Pondicherry Act, 2008 - Services – Medical Negligence – Medical negligence if can be attributed – Whether due Post Operative care was given to the patient - From the medical literature referred above it is evident that timely suspicion and diagnosis is crucial for avoiding damage due to bowel perforations which is a rare but significant complication of gynaecologic laparoscopic surgery.” In the case on hand this timely detection of the caecal injury was not done inspite of the patient being a high risk patient in view of the previous history of appendectomy. [Paras 83 to 85].

(D) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Jawaharlal Institute of Post -Graduate Medical Education and Research, Pondicherry Act, 2008 - Services – Medical Negligence – Vicarious liability - if can be attributed on hospital - In the circumstances if the patient suffers injury due to negligence of the doctors provided by the hospital, the hospital should be equally liable for damages on the principles of vicarious liability or on the principles analogous to vicarious liability - Therefore it is concluded that Opposite party No. 2 JIPMER Hospital is vicariously liable for the negligence of the Opposite party no.1. [Paras 88].

(E) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Jawaharlal Institute of Post -Graduate Medical Education and Research, Pondicherry Act, 2008 - Services – Medical Negligence – Contributory Negligence – If can be fastened – When it is seen that even though the patient did not go to the surgery department as directed, she was not indifferent either and was consulting her doctor who was treating her earlier. Nevertheless, the patient and the complainants cannot be entirely absolved of the charge of contributing for the mishap that has befallen the patient. Perhaps if she had gone to the Surgery department and taken their opinion, the perforation may have been found at that time itself i.e. on 8.01.2016/9.01.2016 instead of on 21.01.2016 during the laparotomy. Hence it is held that the patient and the complainants themselves have contributed for their sufferings at least to a limited extent – Also, Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. [Paras 94].

(F) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Jawaharlal Institute of Post -Graduate Medical Education and Research, Pondicherry Act, 2008 - Services – Medical Negligence – Civil Procedure Code, 1908 – Or. 1 Rule 10 – Joinder of parties – necessary parties - In so far as the law with regard to the non joinder of necessary party as per Civil Procedure Code Order 1 Rule 9 and Order 1 Rule 10 no suits shall fail because of mis joinder or non joinder of parties. It can proceed against the persons who are parties before the court. Therefore even if after the direction given by the commission the concerned doctor and the nursing staff who were looking after the deceased have not been impleaded as opposite parties it cannot result in dismissal of the original petition as a whole. Hence the plea of the Opposite parties that the complaint shall be dismissed due to non-joinder of necessary parties is rejected. [Para 99].

(G) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Jawaharlal Institute of Post -Graduate Medical Education and Research, Pondicherry Act, 2008 - Services – Medical Negligence – Evidence Act, 1872 – Applicability of - . Exhibit C11 is not having any evidentiary value as the author of the document has not been examined and the particulars are false. Exhibit C11 was perused. Evidence Act is not applicable for the proceedings under the Consumer Protection Act. [Para 100].

(H) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Jawaharlal Institute of Post -Graduate Medical Education and Research, Pondicherry Act, 2008 - Services – Medical Negligence – laparocopy - negligence attributed - Both laparoscopic cystectomy and open surgery are equal effective procedures and laparoscopic copic surgery is an accepted method of treatment and Opposite Party 1 is the best arbiter to decide and choose the right procedure to suit the occasion and she is permitted to exercise such an option – Also, doctor is not a guarantor of cure and that a doctor is permitted a broad range of judgment in their professional duties and they are not liable for error of judgment that an error of judgment was the result of negligence – on facts, laparocopy is an accepted method of treatment for cystectomy and the Opposite party is not at fault for having selected this procedure – Therefore, Opposite Party No.1 was negligent and did not exercise the required skill as expected of a reasonable professional in conducting the laparoscopy surgery. [Paras 100 to 102].

(I) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Jawaharlal Institute of Post -Graduate Medical Education and Research, Pondicherry Act, 2008 - Services – Medical Negligence – appropriate Compensation – In the facts of the present case, the complainants have not claimed any amount as expenditure for the treatment at the Opposite party hospital, no compensation is due on this account - Thus a sum of Rs.30,59,982/- is worked out as the compensation payable for the negligence committed by the Opposite parties. As already discussed the patient and the complainants have contributed to the damage by their non-complying with the instructions of the Opposite parties. Hence it is felt that 25 % of the compensation (Rs.7,64,996) arrived at may be reduced towards this contributory negligence as held by the Hon’ble Apex Court in Municipal Corporation of Greater Bombay case cited supra. Thus the compensation payable to the complainants is Rs.22,94,986/-(Rs.30,59,982-Rs.7,64,996). The compensation of Rs.22,94,986 shall be paid with 9% from 17.02.2017 i.e. date of complaint before this Commission. In otherwise, the opposite party no.1 is working under the opposite party no.2. Both are jointly and severally liable to pay the said sum – On facts, The opposite parties 1 and 2 are hereby directed to pay jointly and severally a sum of Rs. Rs.22,94,986/- (Rupees twenty two lakhs ninety four thousand nine hundred and eighty six only) towards compensation with interest at the rate of 9% from the date of complaint i.e. 17.02.2017 till the realization – Complaint is allowed. [Paras 110 to 114].

Result: Complaint allowed.